FEDERAL COURT OF AUSTRALIA

MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The first respondent pay the appellant’s costs of and incidental to the appeal.

3.    The orders made by the Federal Magistrate on 4 April 2012 be set aside.

4.    In lieu of the orders made by the Federal Magistrate on 4 April 2012:

(a)    it is declared that the recommendation of the second respondent in the IMR report was not made in accordance with law;

(b)    the first respondent is restrained, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the second respondent in the IMR report;

(c)    the first respondent pay the appellant’s costs of and incidental to the application to the Federal Magistrates Court as agreed or otherwise taxed in accordance with the Federal Court Rules 2011 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

iNTRODUCTION

1    By notice of appeal filed on 19 April 2012, the appellant appeals from the judgment of a Federal Magistrate, who, on 4 April 2012, dismissed his application for relief in respect of the recommendation of the second respondent (“the IMR”) dated 3 August 2011 that he not be recognised as a person to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol.

2    On 26 July 2012, the appellant filed and served, out of time, a proposed amended notice of appeal. The first respondent did not oppose leave to rely upon the amended notice of appeal, which was granted accordingly.

3    The appellant relied on his affidavit sworn on 2 May 2012 and on written submissions dated 26 July 2012.

4    The first respondent relied on written submissions dated 2 August 2012.

Background

5    On 15 April 2010, the appellant arrived by boat at Christmas Island. On 20 September 2010, an officer of the Department of Immigration and Citizenship dismissed the appellant’s claim for refugee status. On 12 May 2011, the appellant attended an interview with the IMR, who was provided with the written submissions of the appellant’s agent, the Refugee Advice and Casework Service.

6    On 3 August 2011, the IMR recommended that the appellant not be recognised as a refugee.

7    The appellant applied to the Federal Magistrates Court and filed an amended application on 2 February 2012.

8    The appellant, a 33 year old man, born in 1978, in Ghor, Afghanistan, is of Hazara ethnicity and is a Shia Muslim. He fled to Iran from Afghanistan at the age of 10 or 11 with his parents, apparently “because of fighting between Pashtun and Hazara people”.

9    After residing illegally in Iran for about 15 years, in 2004, the appellant’s family was deported to Afghanistan. They travelled from the border to Kandahar because, as the appellant stated, “my father decided we would go to Kabul because he thought there would be more opportunities for the family”. During the journey, the family’s transport was attacked by gunfire and the appellant’s father, mother, younger brother and sister were killed. The appellant received a gunshot wound to his foot.

10    The appellant then took his surviving family to Quetta in Pakistan, which he believed to be a safer place. He found work as a tailor in Quetta and lived there with his family for six and a half years. He and his family are not, however, citizens of Pakistan.

11    The appellant’s wife, four children, his brother, his brother’s wife and his brother’s daughter remain in Pakistan. The appellant claimed that he left Pakistan because he experienced persecution by violent attacks against Hazara Shias. He claimed that on one occasion, he was in a taxi which was attacked by persons whom he believed to be local Balouchi or Pashtuns, and some months after, there were other violent attacks in which Hazaras were killed. The appellant did not know if the police or the Balouchi were responsible for the killings, but claimed that the attacks were worsening.

12    In his reasons dated 3 August 2011, the IMR noted at [32] to [34]:

The claimant says that he cannot return to Pakistan because he was there illegally. He fears persecution on the basis of his Hazara ethnicity and Shia religion and because the Pakistani authorities provide no protection.

The claimant fears return to Afghanistan because of persecution on the basis of his Hazara ethnicity and Shia religion. When last returned to Afghanistan from Iran he lost four members of his family to this persecution.

He first left Afghanistan when he was very young and has no family support left there, either in the province of his birth or elsewhere. He also fears persecution on the basis of being a returnee from the West.

13    The appellant’s agent submitted before the IMR:

[The claimant] claims that if he was forced to return to Afghanistan, he would suffer persecution for reasons of one or more of the following refugee Convention grounds:

•    His Hazara race/ethnicity and Shi'a religion (imputed due to ethnicity); and/or

•    His membership of the particular social group of ‘returnees’; and/or

•    His membership of the particular social group of ‘Western returnees’.

14    The IMR noted that the appellant’s father had owned a farm in Afghanistan which (as far as the appellant knew) still legally belonged to his family, although their last remaining relation in Afghanistan, his uncle, had now been killed.

15    The IMR recorded that he questioned the appellant about why his father planned to take his family to Kabul. The appellant responded that although Hazaras who had lived for generations in the Hazarajat might survive reasonably, he had not lived there since he was a child, had a pronounced Iranian accent and would be regarded as a foreigner. Further, he had no tazkira and could not obtain one without a dangerous journey to his home district. Relocation was therefore not practicable.

16    The IMR recorded at [53] that:

[The appellant] responded that Hazaras in Kabul who had been there for many years may be able to survive because they know their way around and have contacts and protection from the Taliban. He, however, could not present as an Afghan and would be looked upon as a foreigner.

17    The IMR referred to the submissions on behalf of the appellant and to authorities and reports on which he relied. The IMR noted the appellant’s argument that his strong Iranian accent, progressive attitudes and different dress would cause the Taliban to suspect that he had anti-Taliban views or was an Iranian spy. The IMR noted the appellant’s argument that his return to a small rural village in Ghor province (which he had left when very young) without familial or land connections, would expose him to a real chance of serious harm, and he would be regarded with suspicion. The IMR noted the appellant’s argument that as he had no land, he would need to travel to find work if he returned to Ghor province, and would thus risk encounters with the Taliban, which would be aggravated because he had no tazkira, and may never be able to obtain one because there were no surviving relations to identify him.

18    The IMR noted the appellant’s argument that it was not practical for him to return to Ghor province and that discrimination and insecurity for Hazaras and Shias had not reduced.

19    The IMR also noted the appellant’s following arguments against relocation:

(a)    the Taliban’s influence had extended and an easily identifiable, undocumented returnee would not be safe anywhere in the country;

(b)    Hazaras were targeted not just in Ghor, but all over Afghanistan. In 2011, the Refugee Review Tribunal (“the Tribunal”) found that it would not be reasonable for an individual Hazara to relocate and found (in a decision in 2010) that there appeared to be widespread persecution directed at Hazaras and Shias throughout most parts of Afghanistan; and

(c)    the security and humanitarian situation in Kabul made it an unreasonable alternative for the appellant, who would lack protection there, particularly in view of his lack of education, lack of family contacts, his Hazara ethnicity, Shia faith and Farsi accent and mannerisms.

20    The IMR also discussed the appellant’s seizures and anxiety attacks and referred to UNHCR relocation guidelines which suggested that psychological trauma from past persecution may be relevant to whether it is reasonable for a claimant to relocate.

21    The IMR referred to relevant country information, which stated that although Hazaras were subject to social discrimination, there was little evidence (as distinct from opinion) to suggest that they were generally persecuted in the sense of being subjected to serious harm because of their ethnicity or religion. The IMR also referred to country information suggesting that the position of Hazara Shias had improved in recent years.

22    The IMR referred to the essay of Jacob Rothing dated 5 April 2011 on internally displaced persons (“IDP”) returning to their place of origin in Afghanistan, which he noted was also relevant to the situation of returnees from abroad. The essay recognised that returns could be dangerous unless “voluntary, safe, informed and in conditions of dignity”. Returns by Afghan IDPs who had been away for many years and tried to recover abandoned properties could often be disastrous. In some rural areas, the general population cited the return process as their most negative recent experience (at [64]).

23    The IMR referred to country information which stated that the security situation in Wardak had deteriorated.

24    The IMR referred to country information indicating that a quarter of returnees (primarily single, educated females) recounted being socially ostracised on their return to Afghanistan.

25    The IMR referred to DFAT advice dated June 2011 that the vast majority of returnees did not face any significant problems in obtaining a tazkira.

26    Under the heading “Relocation”, the IMR referred to UNHCR Guidelines which stated that relocation was a generally reasonable alternative where protection was available from the “extended family, community or tribe in the area of intended relocation” (at [70]). Single males and nuclear family units could also, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. A case-by-case analysis was necessary.

27    The IMR referred to a DFAT report dated September 2010, which indicated that a Hazara human rights contact stated that Hazaras had a “cohesive community in Kabul and it would be relatively easy for new arrivals to integrate into the city” (at [71]). The IMR also referred to a DFAT report dated June 2010, which stated that returnees to any part of Afghanistan could face difficulties if without family, land or social networks, although few people in Afghanistan were without networks.

28    The IMR accepted that the appellant was credible. He accepted the appellant’s account of his life and past experiences.

29    The IMR accepted that the appellant would face a real chance of persecution travelling through Wardak and Bamyan to Ghor, and thus concluded that he could not travel to his home location.

30    The IMR then considered whether there was another location in Afghanistan to which the appellant could reasonably locate which would not expose him to the risk of persecution for a Convention reason.

31    In his reasons, the IMR adverted to his discussion with the appellant about whether Kabul would be a suitable place for relocation. The IMR noted that the appellant had objected that he would be regarded as a foreigner in Kabul and would lack protection. Further, the appellant’s agent had referred to a Tribunal decision containing country information to the effect that returnees would be subjected to violence.

32    The IMR then observed at [83] to [84]:

More recent reports, however, do not suggest a level of harm that would meet the criterion of serious harm as required by s91(R)(1)(b) of the Migration Act, while noting that returnees can experience discrimination and suspicion.

To the extent that returnees have been harmed, it appears that they have either been victims of generalised violence or have had particular personal circumstances that set them apart. I have been provided with no evidence to substantiate the proposition that returnees with profiles similar to the claimant's are subjected to serious harm on account of their having been out of Afghanistan for long periods, or as returned asylum seekers.

33    The IMR referred to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, which stated that less favourable treatment and discrimination did not necessarily amount to persecution.

34    The IMR concluded at [88] to [91]:

•    I accept that as a Shi'a Hazara, particularly one with a foreign accent, there may be some risk of discrimination against the claimant if he returns to Kabul;

•    I accept also that the claimant would have no pre-existing family support network in Kabul. In this regard I have noted the two DFAT advices referred to at paragraphs 71 and 72 above;

•    I further accept that the claimant’s lack of a tazkira might cause him some difficulty, at least in the initial stages of relocation; and

•    In relation to the health issue, it would appear that the origins of the panic attacks and other symptoms are, as the claimant has stated, the tragic incident in which members of his family were killed. I accept that these episodes are likely to continue if he returns to Afghanistan.

None of these factors, however, detract from the facts that, as put to the claimant at the IMR interview, he lived in Quetta, a large town in a foreign country, for six years before coming to Australia; he worked there as a tailor, having also been a tailor for a number of years in Iran; and in addition to supporting himself and his family in Quetta, was able to save the considerable sum required to pay a people smuggler to come to Australia.

In my view this demonstrates that he is a resourceful individual. Although he might find life in Kabul difficult, the evidence does not satisfy me that the impact upon him would be such as to make relocation to Kabul unreasonable.

I consider, therefore, that it would be reasonable for him to relocate to Kabul.

Application to Federal Magistrates Court

35    The appellant relied on four grounds of review before the Federal Magistrate, all of which were rejected.

36    The Federal Magistrate rejected the allegation that the IMR incorrectly relied upon s 91R of the Migration Act 1958 (Cth) (“the Act”) in considering whether it was reasonable for the appellant to relocate to Kabul and thus adopted an approach contrary to that established in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [12] and [15] (“SZATV”). The Federal Magistrate found that the IMR accurately set out the relocation test as described in SZATV and had regard only to relevant considerations (including whether the appellant would face serious harm in Kabul) (at [17] – [19]).

37    The Federal Magistrate rejected the allegations that the IMR failed to address the correct question in assessing whether it was reasonable for the appellant to relocate to Kabul, and did not address each integer of the appellant’s claims. His Honour found that the IMR addressed the appellant’s claims, including his objections to relocation made in the appellant’s submission of 8 June 2011, which were summarised by the IMR. The Federal Magistrate found that, on a fair reading of the recommendation as a whole, the IMR had not failed to consider the claims cumulatively (at [27] – [28]).

38    The Federal Magistrate also rejected the allegation that the IMR took into account irrelevant material or gave undue weight to material of limited relevance. His Honour noted the appellant’s allegation that there was no logical connection between the IMR’s findings about life in Quetta, Pakistan (where the appellant and his family lived from 2004 to 2010) and life in Kabul (where the IMR found the appellant could reasonably relocate). The Federal Magistrate found that the IMR’s reasoning could not fairly be characterised as a comparison of life in Quetta with life in Kabul. Rather, the Federal Magistrate found that it was open to the IMR to find that the appellant “was a resourceful individual because he had been able to survive in Quetta” (at [33]). Further, the Federal Magistrate considered that “[t]o go on and then find that relocation to Kabul would be reasonable given this resourcefulness” was an entirely appropriate process of reasoning on the part of the IMR (at [33]).

39    The Federal Magistrate rejected the allegation that the IMR’s conclusion that it was reasonable for the appellant to relocate to Kabul was illogical or unreasonable (at [35]).

The amended notice of appeal

40    By the amended notice of appeal, the appellant advanced three grounds of appeal, which in substance largely replicate grounds 1 to 3 before the Federal Magistrate.

Ground 1

The Federal Magistrate erred in finding that the Independent Merits Reviewer "IMR" had not fallen into jurisdictional error by misdirecting himself or asking the wrong question when he made a finding that it would be reasonable for the appellant to relocate to Kabul.

Particulars

1.    The IMR incorrectly imported the criteria of serious harm under s.91R of the Migration Act 1958 into the relocation principle, which is contrary to the test formulated in SZATV v Minister for Immigration and Citizenship [2007] HCA 40.

2.    The Federal Magistrate stated that the IMR's reference to serious harm in s.91R of the Migration Act 1958 (Cth) “was not an impermissible consideration” of the relocation principle (at [18] of the FMC judgment), contrary to High Court authority.

41    In relation to ground 1, the appellant submitted at [11] and [18]:

Therefore, the IMR has explicitly referred to the “criterion of serious harm” in s.91R(1)(b) of the Migration Act, in determining whether the appellant should be relocated to Kabul. However, the High Court has said that s.91R does not apply to the "relocation principle" as it is the text of the Convention definition that is paramount when applying that principle. Accordingly, the IMR misdirected itself or asked itself the wrong question in the determination of this principle and thereby fell into jurisdictional error.

…

The practical effect of the IMR erroneously importing a s.91(R) serious harm qualification into the relocation principle, was to unnecessarily raise the threshold of persecution which the appellant had to demonstrate. Therefore, the IMR has erroneously applied a higher threshold than the fear of persecution, as set by the Convention, in applying the relocation principle.

42    The appellant submitted that the Federal Magistrate’s treatment of the above complaint was inconsistent, because the Federal Magistrate at one point stated that he was not convinced that it was quite correct that the reference to s 91R of the Act was no more than a passing remark, but ultimately concluded that the IMR did not fail to apply SZATV and did not fall into error by “the passing reference” to s 91R.

43    The appellant, while submitting that the High Court in SZATV stated that the serious harm criteria was irrelevant to the analysis of the relocation principle, recognised that the risk of harm may be a relevant consideration to whether relocation is reasonable.

44    The appellant nevertheless submitted that the Federal Magistrate erred in stating that it was appropriate to consider serious harm in applying the relocation principle at [18] – [19] as follows:

Nonetheless, in my opinion, for the Reviewer to be concerned with whether or not the applicant would face serious harm upon his return to Kabul was not an impermissible consideration of one of the matters that would go to whether or not it was reasonable in the sense of practicable for the applicant to relocate.

If one looks at paras 88–90, what the Reviewer was concerned with was whether or not it was reasonable for the applicant to relocate to Kabul. The prospect of serious harm should he so return was plainly a relevant consideration.

45    The appellant submitted that the Federal Magistrate effectively introduced serious harm as defined in s 91R of the Act into the relocation test, contrary to High Court authority, and failed to recognise that the IMR went beyond considering the risk of harm in deciding whether relocation was reasonable and instead “raised the threshold of persecution which the appellant had to demonstrate”.

46    In SZATV, the High Court held that the Tribunal erred in finding that it was reasonable for the claimant (a journalist who had suffered persecution for the Convention reason of his political opinion, localised to a region in the Ukraine) could reasonably relocate elsewhere in the Ukraine. The Tribunal was not satisfied that the claimant’s fears of persecution upon his return to the Ukraine were well-founded (at [32]).

47    In SZATV, the plurality (Gummow, Hayne and Crennan JJ) pointed out that the Convention text did not refer to relocation or its reasonableness and any such notions were to be derived “as a matter of inference from the more generally stated provisions of the definition” [of “refugee”] in Art 1A(2)] (at [11]). Their Honours reiterated that “any ‘principle’ respecting ‘internal relocation’ must be distilled from the text of the Convention definition, which is applied by s 36(2) of the Act as a criterion for the grant of a protection visa” (at [15]). Their Honours observed that the Act now provided further specification of some of the general terms used in the Convention definition of “refugee”, of which ss 91R and 91S were examples, but stated that “no such provision is made respecting any ‘relocation principle’” (at [12]).

48    Section 91R of the Act relevantly provides:

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

49    In SZATV, the plurality adopted the reasoning of Lord Bingham in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 440. The plurality discussed the formulation of the test for relocation at [23] and [24] as follows:

The minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well-founded fear of persecution.

However, that does not mean that, without more, the formulation by the minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

50    In SZATV, the plurality concluded that the Tribunal in that case effectively required the appellant to move elsewhere in the Ukraine and live discreetly, getting work outside his usual profession of journalism, and thus not attract adverse interest from the authorities in his new location. By that reasoning, the Tribunal “sidestepped consideration of what might reasonably be expected of the appellant with respect to his ‘relocation’…” (at [32]).

51    In SZATV, Kirby J, in a separate judgment, acknowledged that, despite academic criticism, a relocation test, variously formulated, was generally accepted internationally (at [74]). His Honour stated at [80] and [81] that:

A review of the literature suggests that this conclusion will not invariably follow, either as a matter of fact or law. Thus, internal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven. Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation; or where safety could only be procured by going underground or into hiding; or where the place would not be accessible on the basis of the applicant’s travel documents or the requirements imposed for internal relocation.

An inability or unwillingness on the part of the national authorities to provide protection in one part of the country may make it difficult to demonstrate durable safety in another part of that country. In some circumstances, having regard to the age of the applicant and the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable. In each case, the personal circumstances of the applicant, the viability of the propounded place of internal relocation and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution will need to be weighed in judging the realism of the hypothesis of internal relocation.

(footnotes omitted)

52    In MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541, (“MZYPW”), Flick and Jagot JJ stated at [9]:

No issue was taken with the proposition that an assessment of reasonableness was dependent upon “the particular circumstances of the applicant for refugee status”. Nor did senior counsel for the respondent minister put in issue the potential relevance of those factors identified by Kirby J. Relevant to the present proceeding is the respondent minister’s acknowledgment that when assessing whether relocation is reasonable one may consider factors such as:

•    “other and different risks in the propounded place of internal relocation”, including risk of violence for non-Convention reasons; and

•    “the absence of family networks”.

What was put in issue, and what must be accepted, was that the factors identified by Kirby J were not to be construed as a statutory list of considerations which must necessarily be taken into account in every case.

53    In the present case, the first respondent submitted that the appellant’s argument depended on a misreading of SZATV, as the High Court did not hold that the “serious harm” criterion was irrelevant to the analysis of the relocation principle, and “[t]he specific passages in SZATV relied upon by the appellant merely point out that there is no provision in the Act concerning relocation and that the relocation principle is distilled from the terms of the Refugee Convention itself: SZATV at [15]”.

54    While the plurality in SZATV recognised that neither s 91R nor any other provision of the Act applied to further specify the “relocation principle”, it did not state, nor is it a necessary inference, that the risk of harm in the proposed new region (of whatever level and however defined) is irrelevant in applying the principle of relocation laid down in SZATV. Conversely, neither SZATV, nor any other authority to which I was directed, holds that where the risk of harm is relevant to the reasonableness of relocation, it is restricted to a risk of serious harm within the meaning of s 91R(1)(b).

55    Consistently with SZATV, factors such as “other and different risks in the propounded place of internal relocation” (which, as recognised in MZYPW, may include the “risk of violence for non-Convention reasons”) may be relevant, albeit not mandatory, considerations when determining the reasonableness of a proposed relocation.

56    The first respondent submitted that the IMR did not adopt an erroneous approach, but rather applied “the correct test, being whether, in all the circumstances, it was reasonable to expect the appellant to relocate to Kabul. To suggest that the Reviewer considered the question of whether the appellant would suffer “serious harm” as the applicable test for relocation is not a fair reading of the Reviewer’s reasons in their entirety: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259”.

57    The IMR’s reference to s 91R(1) in the context of his consideration of whether it would be reasonable for the appellant to relocate to Kabul, was apparently responsive to the appellant’s objections that, if relocated, he would lack protection and would face violence.

58    The IMR did not, in my view, treat the question whether the appellant was at risk of serious harm as the sole determinant or test of the reasonableness of his relocation. Nevertheless, in my opinion, the IMR erred in that he treated any harm which was not “serious harm as required by s 91R(1)(b)” as incapable of relevance to the reasonableness of relocation.

59    Thus, at [84], the IMR apparently dismissed the appellant’s objections to relocation based on lack of protection and violence on the basis that harm which was not “serious harm as required by s 91R(1)(b)” could not constitute a valid objection in that context.

60    The IMR’s observations at [84] fortify the impression that he considered that the risk of levels or kinds of harm other than “serious harm as required by s 91R(1)(b)” could not affect the question of the reasonableness of relocation. The IMR at [84] acknowledged that returnees could suffer “generalised violence” or could be harmed due to “personal circumstances that set them apart”, but stated that there was no evidence that someone of the appellant’s profile would be subjected to serious harm (emphasis added) as a returnee. The IMR did not consider the impact of the risk of harm in the form of generalised violence or harm (of an unspecified nature or level) due to personal circumstances on the reasonableness of the appellant’s relocation. By inference, the IMR proceeded on the basis that unless the harm were serious harm within the meaning of s 91R(1)(b), it was unnecessary to do so.

61    In my opinion, therefore, the IMR’s error lay not in considering that a risk of “serious harm as required by s 91R(1)(b)” was relevant to relocation, but in implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation.

62    While the IMR’s reasons should not be read with over-zealous scrutiny, the failure to include the risk of generalised violence or harm due to personal circumstances in the list of relevant factors weighing against the reasonableness of relocation in [88] indicates that any harm that was not “serious harm as required by s 91R(1)(b)” was excluded from consideration in that context.

63    In my opinion, the error alleged in ground 1 is established.

Ground 2

The Federal Magistrate erred in finding that the IMR had not fallen into jurisdictional error by misdirecting himself in relation to the relocation test when he failed to take into account the particular circumstances of the appellant in determining whether, it was reasonable for the appellant to be relocated to Kabul.

Particulars

1.    The IMR failed to properly consider the particular circumstances of the appellant and the impact of relocation on the appellant given those particular circumstances especially his mental illness and psychological trauma arising from past persecution, whether health services would be available to the appellant, and the lack of family support in Kabul.

2.    The IMR ignored or discounted country information on the basis of a false and arbitrary distinction between opinion evidence and evidence.

64    The appellant submitted at [30]:

The Federal Magistrate states at [27]: “the matters raised by the applicant’s adviser’s submissions were all paraphrased, in my view unobjectionably, by the Reviewer. They are again summarized at paragraphs 86 to 88. In my view, the Reviewer did not fail to analyse in sufficient detail each of the matters that the applicant advanced”. (emphasis in original)

65    The appellant submitted that the IMR merely paraphrased the alleged impediments to relocation and did not consider them in substance, in relation to how, in a practical sense, the appellant could reasonably be expected to relocate to Kabul. The appellant submitted at [31] that “[i]t appears all of these matters are completely discounted by the reference to the appellant’s ability to live in Quetta for the previous 6 years (discussed in Ground 3). Merely identifying them and summarily dismissing them on the basis that they are completely counterbalanced by the appellant’s survival in Quetta does not amount to taking them into account”.

66    The appellant submitted that the IMR failed adequately to address the impact of relocation to Kabul on the appellant’s mental illness, as he did not consider the need for and access to health services, the impact of being in Kabul or lack of family network, and failed to explain why a qualification in a DFAT report about difficulties faced by returnees without a network would not apply to the appellant.

67    The appellant relied in that context particularly on MZYPW, where Flick and Jagot JJ referred to the guidelines for IMRs which required, inter alia, the IMR to “address all the claims made by the claimant, reflect genuine consideration of them, and set out clear findings on all questions of fact that are material” (at [12]). Their Honours recognised that the guidelines “must be read in a sensible and balanced manner” (at [13]).

68    While Flick and Jagot JJ recognised that the reasons of an administrative decision-maker should not be over-zealously scrutinised, (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272), they concluded that the IMR failed, even on a beneficial construction, to address or assess the identified factors relevant to relocation in accordance with law. Instead, the IMR merely recorded submissions without resolving them or recorded circumstances without demonstrating that the factors identified as relevant were taken into account (at [19]-[20]).

69    Yates J, in a separate judgment, at [38] stated:

On a fair reading of the IMR’s reasons, I am satisfied that she failed, as a matter of substance, to take into account the specific issue of dialect that had been raised by the appellant. Although the IMR’s reasons state that the appellant’s submission was “considered”, I am satisfied that it was simply side-stepped by the IMR doing no more than recording that the appellant had identified Hazaragi as his language and finding that the appellant and his children conversed in the Hazaragi language. This did not engage the substance of the issue brought forward by the appellant for the IMR’s consideration. It effectively ignored it. The consequence was that the IMR failed to take that matter into account in her assessment and conclusion concerning the reasonableness of the appellant’s relocation to Kabul. In my view this constituted an error of the kind for which relief can be granted: see Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; 272 ALR 14; 123 ALD 244; [2010] HCA 41 at [90]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 73 ALD 321; [2003] HCA 26 at [24] and [95].

70    In NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 (“NAIZ”), Branson J (with whom North J agreed) held that where the Tribunal “did not apply the right test” for relocation when it dealt with the issue of relocation in a “summary way” and failed “to explore the significance of the [claimant’s] references to having no-one in Fiji ‘to look after her’”. It did not, as was required, “give consideration to the practical realities facing” the claimant if she relocated within Fiji and did not “give consideration to how, in a practical sense” she could reasonably be expected to relocate to Fiji (at [22]).

71    In SYLB v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 498, Branson J stated (on the basis of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; 124 ALR 265; 35 ALD 1, Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387, Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] HCA 18 and NAIZ) that “humanitarian considerations personal to a particular applicant, such as the applicant’s marital status and need for care, are relevant to the assessment of whether the applicant can reasonably be expected to relocate within his or her country of nationality. By analogy, it seems to me, factors such as the possible impact of relocation on an applicant’s psychiatric health must also be relevant to this assessment” (at [22]).

72    Branson J found that the applicant’s personal circumstances included profound post-traumatic stress disorder, depression and cancer (at [28]), but the Tribunal apparently failed to appreciate the need to make a judgment as to whether, having regard to those personal circumstances, and the circumstances she could be expected to face in the proposed place of relocation, it would be unreasonable to expect her to relocate (at [30]).

73    In SZIED v Minister for Immigration and Citizenship [2007] FCA 1347, Moore J also emphasised that “[p]roper consideration must also be given to the issue of relocation as a practical matter, by considering whether it would be reasonable to expect the person to relocate in view of all the ‘practical realities’ facing that person” (at [42]).

74    In the present case, counsel for the appellant, after the conclusion of the hearing, forwarded to chambers with leave two additional authorities, SBTF v Minister for Immigration and Citizenship [2007] FCA 1816 (“SBTF”) and MZYLH v Minister for Immigration and Citizenship [2011] FMCA 888 (“MZYLH”).

75    In SBTF, Lander J found that the appellant advanced a case that he would suffer psychological harm if returned to Bahrain as a result of having been detained and tortured. Although the claim was not specifically articulated, his Honour observed that (as recognised in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [13]” (at [38])) the Tribunal was obliged to inquire into it.

76    Lander J found that the Tribunal did not consider that aspect of the appellant’s claim and thus fell into error (at [50]-[51]).

77    In MZYLH, Whelan FM referred to relevant authorities, including Franco-Buitrago v Minister for Immigration and Multicultural Affairs [2000] FCA 1525, where Tamberlin J stated at [17]:

The question of whether safe internal relocation is reasonably available is, of course, one of fact for determination by the RRT. However, in reaching a conclusion on this question the RRT must not fall into an error of law by excluding from consideration matters which are central to a determination of that issue. The reasoning in Randhawa makes it clear that the circumstances to be taken into account are wide ranging, with strong emphasis on the practical realities of an applicant’s position such that the cultural problems of relocation can be taken into account. In the present case the issue of Juan’s health was specifically raised by the applicant as a matter for consideration. The medical condition of the child could reasonably be considered to bear on the question whether relocation is reasonable, or feasible in a practical sense. For example, it may be considered that it is not reasonable to expect the family to relocate in a “safe area” remote from those medical and hospital services and facilities for Juan which are normally found in a large city. The need for medical treatment for the child may also require the parents to visit Pereira where they could experience a real danger of persecution. These practical considerations arising from the child’s predicament could limit the number and type of places suitable for relocation and carry weight in determining the question whether relocation in the country is reasonable in the circumstances of any particular case.

78    Whelan FM at [137] observed that the Tribunal was obliged to consider the practical realities in determining whether it is reasonable to expect a person to relocate, which were not limited to matters related to persecution for a Convention reason, Whelan FM stated at [138] and [141]:

[138] The issue is not whether the Applicant might be denied treatment for his mental illness for a Convention reason but whether he could relocate within Pakistan and maintain himself given the state of his health. As Branson J said in NAIZ, the approach set down in Randhawa requires the Tribunal to consider the practical realities facing the Applicant to consider how, in a practical sense, he could reasonably be expected to relocate.

…

[141] It is not clear on what basis the Tribunal concluded that the Applicant would not be denied treatment for his psychological conditions but Country Information to the effect that there was one psychiatrist for every 10,000 people in Pakistan was available to the Tribunal and would suggest, at the very least, some practical difficulty in accessing such treatment.

79    Her Honour found that jurisdictional error was therefore established.

80    While the mere recording of evidence or a statement of the appellant’s objections without analysis or resolution would not amount to “consideration” in the relevant sense, I was not persuaded that the IMR in this case, on a fair reading of the reasons as a whole, merely paraphrased evidence or listed submissions without any resolution. Rather, at [88], the IMR identified many of the appellant’s objections to relocation and acknowledged their validity. Having previously discussed in detail country information which bore on various objections, the IMR weighed them against the identified countervailing factor and concluded that relocation to Kabul was not unreasonable in the circumstances.

81    It was not, as the appellant at one point appeared to suggest, incumbent on the IMR independently to raise, investigate and address in detail or exhaustively, the possible ramifications and contingencies which might arise in connection with various objections, nor specifically to explain why he considered that the difficulties recognised in each piece of country information would not apply to the appellant.

82    Nor was I persuaded that the IMR misapplied the requirement of the relocation principle that there be no appreciable risk of the occurrence of the feared persecution in Kabul, by dismissing reports of discrimination against Hazaras and Shias for invalid reasons. As the first respondent submitted at [23]:

The appellant also seems to submit that the Reviewer’s alleged failure to take into account the particular circumstances of the appellant’s situation was consequent upon the Reviewer’s reliance upon “a false distinction between opinion evidence and evidence”. An administrative decision-maker is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances: Lee v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. It was open to the Reviewer to assess the weight of the evidence by characterising it in a particular way and arriving at the conclusion that he reached, namely “there is little evidence, as distinct from opinion, to suggest that [Shia Hazaras] are generally persecuted, in the sense of being subjected to serious harm, because of their ethnicity or religion”. The appellant’s attack on this finding constitutes an impermissible request for merits review.

83    Nevertheless, in my opinion, the IMR failed accurately to identify and consider the appellant’s objection to relocation in Kabul based on his mental illness. The appellant claimed not only to have seizures and panic attacks arising from past persecution (which the IMR accepted, and deemed relevant) but objected to relocation in Kabul because “Quite aside from the fact that adequate care would not be available in Kabul, [the appellant’s] physical responses indicate that he can not bear the thought of returning to Afghanistan…”. Further, the appellant’s submissions dated 8 June 2011 relied on reports which referred to a lack of health care in Kabul, the inadequacy and insecurity of health systems, the closure of clinics and returnees’ lack of access to health care. The IMR expressly recognised that the appellant’s mental health attacks were likely to continue if he returned to Afghanistan, and were relevant to relocation. The IMR did not, however, refer to or consider the practical realities of the lack or inadequacy of health services in Kabul raised by the appellant’s material.

84    Therefore, in my opinion, ground 2 is established.

Ground 3

The Federal Magistrate erred in finding that the IMR had not fallen into jurisdictional error by misdirecting himself in relation to the relocation test when he relied on irrelevant material or gave undue weight to material of very limited relevance.

Particulars

3    The IMR summarily dealt with some of the specific impediments to relocation by merely paraphrasing them and then discounting them against the appellant's survival in Quetta, but without any real inquiry as to how that would make relocation reasonable in the face of the specific impediments.

85    Ground 3 restates complaints made and addressed under other grounds of appeal.

86    Subject to my findings on grounds 1 and 2, I was not persuaded that the general allegation in particular 3 above was, on a fair reading of the IMR’s reasons, established.

87    Nor do I accept that the IMR did not “give any real consideration” to the impediments to relocation in Kabul or erred because there was “a lack of evidence and fact specific inquiry” as to how the impediments would be offset.

88    In my opinion, as the Federal Magistrate pointed out, the appellant mischaracterised the factor which, in the IMR’s opinion, outweighed the acknowledged difficulties of relocation. As the Federal Magistrate stated at [33]:

The criticism made by the applicant’s written submissions is that there is no logical interconnection between the findings about life in Quetta and those in Kabul. But the Reviewer did not purport to find that life in Quetta was the same as life in Kabul. What the Reviewer found was that the applicant was a resourceful individual because he had been able to survive in Quetta, a finding that to my mind was entirely open to him and perfectly reasonable. To go on and then find that relocation to Kabul would be reasonable given this resourcefulness seems to me to be an entirely appropriate process of reasoning.

89    The IMR, in my opinion, save for the matters discussed under grounds 1 and 2, gave consideration to the impediments to relocation in Kabul raised by the appellant and sufficiently considered the evidence before him. The IMR was entitled to accept or reject the evidence and give it such weight as he deemed appropriate.

90    In my opinion, ground 3, as an independent basis of complaint, was not established.

Conclusion

91    In my opinion, the appeal should be allowed.

Associate:

Dated:    18 September 2012